It often seems that Supreme Court Justice Samuel Alito would be happier swapping out his black robes for the garb of whichever right-wing plaintiffs have arrived before the court to air their culture-war grievances.
On Wednesday Alito was at it again, dissenting at length from the court’s 6-3 decision that threw out a conservative challenge to the Biden administration. The White House had tried to counteract the reams of misinformation being spread on social-media sites during the Covid pandemic and the aftermath of the 2020 election, urging social media sites to regulate what was allowed to be posted. Two Republican states and five private citizens cried “censorship!” and said the administration had infringed on their right to free expression, but the court’s majority said they had no right to bring the lawsuit.
Referring to the plaintiffs as “victims” of government censorship who “simply wanted to speak out on a question of the utmost public importance,” Alito wrote grandly, “if the lower courts’ assessment of the voluminous record is correct, this is one of the most important free speech cases to reach this Court in years.”
That is a very big “if,” as the court’s majority noted in tossing the suit for lack of standing. Not only could the plaintiffs not show “any concrete link between their injuries and the defendants’ conduct,” but the lower courts’ assessment of the record was, in fact, far from correct. Many of the district court’s findings, on which the increasingly off-the-wall Fifth Circuit appeals court relied, “unfortunately appear to be clearly erroneous,” Justice Amy Coney Barrett wrote for the court.
During oral arguments in the case, several justices expressed similar concerns with the plaintiffs’ lawyer’s loose relationship to the truth. “I have such a problem with your brief,” Justice Sonia Sotomayor told Benjamin Aguiñaga, Louisiana’s solicitor general. “You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to.”
Aguiñaga apologized “if any aspect of our brief was not as forthcoming as it should have been” — an unusually frank admission of dishonesty by a government official.
And yet his distortions appeared to pose no problem for Alito, who seemed as eager as any Facebook anti-vaxxer to trample basic facts and evidence in service of the right to spew dangerous lies in public without consequences. As Barrett pointed out regarding one of the plaintiffs, Alito “draws links that Hines herself has not set forth, often based on injuries that Hines never claimed.”
Making up facts to reach the conclusion you want to reach isn’t a Supreme Court justice’s job, of course, but it’s entirely in character for a committed culture warrior.